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Member   This is a consumer complaint filed by the Complainant, who is a pensioner and advocate by profession. His wife is also impleaded as Co-Complainant.

They have filed a consumer complaint jointly against the Opponent, namely - M/s. Vardhaman Homes, through its partner - Mr. Hirachand S. Vardhan (hereinafter referred to as the 'Builder/Developer' for the sake of brevity).

[2] According to the Complainants, they jointly purchased a flat bearing No.805, 'B' Wing, Venus Building No.10, situate at Gawand Baug, Pokhran Road No.2, Village Majiwade, Thane (West) from the Builder/Developer. According to the Complainants, their contractual relations are governed by the provisions of the Maharashtra Ownership Flats Act, 1963 and rules framed thereunder, so also, D. C. Regulations for ThaneCity, 1994 are also applicable. The Complainants pleaded that their family purchased only one flat in the building and the stilt and 09 meters open space on all four sides of the building is the common area of the building. According to the Complainants, it is settled legal position that the Builder/Developer cannot sell the stilt and open space of the building as parking space for consideration. The Complainants rely upon the ruling of the Hon'ble Bombay High Court in Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. ~ 2008-(5)-AIR-Bombay-652 and also ruling of the Hon'ble Supreme Court in Civil Appeal No.2544 of 2010 dated 31/8/2010. According to the Complainants, in breach of provisions of the Maharashtra Ownership Flats Act, 1963 and Rules framed thereunder and D. C. Regulations for Thane, 1994 the Builder/Developer collected illegal consideration from the innocent flat-purchasers. The clause No.(36) of the agreement mentions the fact that allotment of stilt and open parking space is for consideration. This clause No.(36) of the agreement is in contravention of Section-16 of the Maharashtra Ownership Flats Act, 1963 and, therefore, it is void. According to the Complainants, the Builder/Developer is liable to pay compensation @ `500/- per day till this default continues. The Complainants pleaded that when they learnt about illegal sale of parking for consideration, immediately they called a meeting of the flat-purchasers and in the said meeting legal provisions were explained to each and every flat-purchaser who was present in the meeting and it was resolved in the meeting to request the Builder/Developer to withdraw the allotment of the parking and to seek refund of the illegal consideration which the Builder/Developer had collected. The Bombay High Court's ruling in Panchali Co-operative Housing Society's case (cited supra) was brought to the notice of the Builder/Developer.

[7] According to the Complainants, minimum open space around high rise building should be 09 meters at ground level but, the effective open space in some area around the building is 03 meters only and this area is also sold out as open parking space.

There is no sufficient space left for fire-brigade vehicle to move around the building.

[8] The Complainants pleaded that the refugee area is not as per prescribed norms and standards. The place directly below the refugee area is also sold out as parking. For this breach, the Builder/Developer is liable to pay compensation @ `500/- per day.

[22] Main grievance of the Complainants in this complaint is regarding non-allotment of the parking space, open or stilt, by the Builder/Developer. We have perused the agreement of sale executed between the Complainants and the Builder/Developer. Under the said agreement, only a flat is sold to the Complainants. Total agreed consideration for the said flat was an amount of `26,64,000/- and the possession was to be handed over on or before 30/9/2009. There is no dispute between the parties that the Complainants had paid full consideration besides the charges mentioned in clause No.(26) of the agreement. The clause No.(36) of the agreement inter-alia provides that the flat-purchaser shall not take any objection or raise any dispute if the Developers allot one open car parking space in the compound of the building or in the stilt area for consideration to the flat-purchaser hereby and the flat-purchasers hereby agree not to violate the car parking spaces allotted to the other flat purchasers for parking his own car. Clause No.(36) further provides that this car parking space allotted to the flat-purchaser is not transferable or saleable by the allottee under any circumstance. In clause No.(38) of the agreement, it has been mentioned that the flat-purchaser shall have no claim save and except in respect of the flat hereby agreed to be sold to the flat-purchaser and all open spaces, parking space, lobbies, staircase, terraces, recreation spaces etc. will remain the property of the Developers until the said land and building is transferred and conveyed to the federation of societies hereinbefore mentioned.

But then, in the compilation, we came across one statement dated 3/8/2011 of the Complainant No.1 recorded by the Police Station Officer, Vartak Nagar Police Station, Thane.

In that statement, the Complainant No.1 mentioned that he had made a complaint with Police Commissioner, Thane and thereafter, an Inquiry Officer was appointed and in the inquiry with regard to breach of public peace, he was giving a statement that as per the statement of Shri Hirachand Vardhan (who is Builder/Developer in our case) parking made by him was temporary and after formation of the society, the society will take a decision of allotting parking space and that decision would be acceptable to him. We have been told in the course of arguments by the Builder/Developer that the society has been formed but, it is very pertinent to note that the society so formed has not been impleaded in the present complaint as a Co-Opponent and once the society is formed, the Builder/Developer cannot interfere or inter-meddle with the affairs of the society or of flat-purchasers. When this is the position, since the society is formed, it is for the society to cancel all the allotments of parking spaces temporarily made by the Builder/Developer to some of the flat-purchasers to the exclusion of other flat-purchasers and to re-allot stilt and open parking space as per the decision taken in its general body meeting and the Managing Committee of the society is supposed to implement said decision accordingly. Had the society being made a party to the present complaint, we would have given directions to the society in this behalf but, the Society of flat-purchasers of the Complainants' building is not impleaded as Co-Opponent and, therefore, we cannot do so but we hope that the society would in the right earnest take decision to re-allot stilt and open parking spaces and in the process, the society shall safeguard the interests of all the flat-purchasers irrespective of black and white payments some of the flat-purchasers may have made to the Builder/Developer to seek favour from the Building/Developer in respect of allotment of parking space. In the circumstances, we are of the view that the Complainants should approach the society in this behalf to seek Redressal of their grievances in respect of non-allotment of parking space. Builder/Developer has no right to interfere in the affairs of the society and the society and its general body is the supreme authority to decide all the issues faced by the Complainants pertaining to open parking space and stilt parking space. We are, therefore, no inclined to declare the allotment made by the Builder/Developer in favour of some of the flat-purchasers as null and void.